Ontario’s Labour and Employment Law Regime as a Blueprint for Addressing Sexual Abuse in Elite Sport

by Paniz Khosroshahy, 2021 winner of the Labour and Employment Law Section Student Essay Contest.

I. INTRODUCTION

In 1996, former National Hockey League (NHL) athlete Sheldon Kennedy revealed that, as a junior player of the Canadian Hockey (League),¹ he had been sexually abused hundreds of times by his former coach Graham James. Over two decades later, the CHL is still the subject of public and legal scrutiny for its failure to address sexual abuse in its teams: in 2020, former CHL player Daniel Carcillo launched a class action lawsuit on behalf of all current and former underage CHL athletes, against CHL and associated organizations, for sexual and other forms of abuse.² But the CHL is not an anomaly. In recent years, revelations of sexual abuse have reverberated at every level of sport in Canada, from local clubs to collegiate athletics to national teams. In fact, according to a CBC investigation published in 2019, at least 222 coaches of “amateur” sports in Canada have been convicted of sexual offences between 1998 and 2018, involving more than 600 underage victims.³

The institutional response to sexual abuse, in sport and other settings, is often based on a familiar and hackneyed playbook: provide anti-harassment training, institute anti-harassment policies, and create a body to enforce those policies. In 1996, in large part owing to the “moral panic” after the James revelations, the Canadian government adopted these measures with respect to National Sport Organizations (NSOs). In 2018, amidst the #MeToo movement, sexual abuse in sport was back on the agenda as the high-profile case of sexual abuse at USA Gymnastics garnered international attention.⁴ In response, in Canada, Minister of Science and Sport Kristy Duncan duplicated the 1996 measures: once again, NSOs were to implement anti-harassment policies with independent enforcement or risk losing their funding. ⁵ Yet, as the CBC investigation and countless damning stories and lawsuits demonstrate, sexual abuse has continued in elite sport in Canada despite these measures, both in the 1996-2018 and the post-2018 periods.

In this paper, I approach the issue of sexual abuse in high level sport under the rubric of labour and employment law: if Canada’s national team athletes are considered employees – and I argue that they should be – they can unlock a robust legal framework to address sexual abuse in sport. This framework can address distinct yet complementary and necessary elements in addressing sexual abuse in sport: dignitary harm, prevention, enforcement, recovery, and advocacy. Even if elite athletes are not employees, devising a structure based on labour and employment law can go a long way in protecting athletes from sexual abuse. For my analysis, I have selected Ontario’s statutory regime of labour and employment because Ontario has some of the most robust protections and most extensive case law in Canada, and because most NSOs are incorporated in Ontario.

I will proceed in six parts. In the remainder of Part I, I will survey the nature of sexual abuse in sport. I will then argue that elite athletes should be considered employees under common law. Even though common law recognition is not necessary to statutory inclusion, the two are, as I will discuss, inextricably tied.  In Part II, I argue that the Human Rights Code (“Code”)⁶ addresses sexual abuse from a dignitary lens: sexual abuse is the violation of athletes’ human rights to participate in sport, and this violation should entitle athletes to monetary compensation. In Part III, I will argue that the Occupational Health and Safety Act (“OHSA”)⁷could fulfill the need for prevention and enforcement: the OHSA would require the implementation of a robust and tailored framework to prevent sexual abuse ex-ante and hold NSOs accountable ex-poste. In Part IV, I will argue that the Workplace Safety and Insurance Act, 1997 (“WSIA”)⁸ could provide athletes with the monetary resources needed to recover and provide a plan for their return to sport after experiencing sexual abuse. In Part V, I will argue that unionization under the Labour Relations Act, 1995 (“LRA”)⁹ could even the power imbalance between athletes and NSOs and enable broader political advocacy. In Part VI, I will close by arguing that the limitations with Ontario’s labour and employment regime should not deter athletes from resorting to it. On the contrary, the regime should be amended and improved to reflect the conditions of work, including those of sport.

A. Sexual Abuse in Sport

The Dynamics of Sport-Related Sexual Abuse

Devising appropriate mechanisms to address sport-related sexual abuse requires first understanding the nature of sport-related sexual abuse: who are the abusers, and where and how does this abuse occur? To answer these questions, I will draw on Sandra Kirby and colleagues’ 1996 survey of 226 elite Canadian athletes on sexual abuse as well as three recent lawsuits of sport-related sexual abuse.¹⁰ The plaintiffs in two of these lawsuits – Forsyth v Alpine Canada¹¹ and Simard v Alpine Canada¹² – have sought damages from Alpine Canada (an NSO) for the sexual abuse they experienced as athletes by a former coach. The third lawsuit, Carcillo v CHL, is against the CHL and not an NSO, but similar dynamics of abuse and power exist within the CHL that can illuminate my analysis.

According to Kirby, the primary perpetrators of sexual abuse against elite athletes are coaches,¹³ followed by other athletes,¹⁴ physiotherapists and physicians, sports administrators, team managers, and strangers.¹⁵ Coaches in elite sport exercise considerable authority over athletes’ day-to-day lives and athletic career without much oversight. They are almost always male and considerably older than most athletes.¹⁶ Given their constant access to athletes, most sexual abuse in sport manifests as a repeated and ongoing pattern taking place in a number of locations, as opposed to an isolated incident in a predictable site.¹⁷ Coach abuse often begins with a coach establishing close, “loving” relationship with athletes or giving them “special attention” in training.¹⁸ Plaintiffs in Forsyth and Simard describe exactly this type of “relationship” with their former coach, Bertrand Charest.¹⁹ They alleged that Alpine Canada did not investigate the coaching history and reputation of Bertrand Charest before hiring him. They alleged that, in its omission, Alpine Canada vested Charest with significant control and access over athletes.²⁰ However, it is important to note that while many coach-athlete relationships are permanent, some are more temporary, in place for a single training session or international competition.²¹ The alleged perpetrators in Carcillo are coaches, team staff, and senior athletes.²²

Kirby found that, by far, most sexual abuse takes place while traveling – for example at a hotel room or on a road trip – as athletes are away from their social support system.²³ Kirby found that sexual abuse also occurs in other settings including training centres, social functions, and private locations such as a coach’s home or office.²⁴ Most of the abuse alleged in Forsyth and Simard took place at overseas training camps and competitions.²⁵ The plaintiffs in Carcillo also plead that athletes’ relocation away from their families for the duration of the season contributed to their vulnerability.²⁶ Sexual abuse in sport also manifests through a toxic environment, either as a result of the offender’s conduct or other athletes’ hostility towards the victim.²⁷ In Carcillo, the plaintiffs allege that the CHL and its teams create a toxic environment where abuse is tolerated, encouraged, condoned and even perpetrated by team staff.²⁸ Allison Forsyth, representative plaintiff in Forsyth, pleads that she was subject to significant hostility from her teammates who viewed her as Charest’s ‘pet’ and blamed her for damaging team cohesion by speaking up, in turn creating a toxic environment for Forsyth and others affected by Charest’s misconduct.²⁹

There are significant institutional barriers to raising a complaint of sexual abuse in NSOs. Kirby found that few athletes made complaints of sexual assault; those who did were seldom satisfied with the results.³⁰ In a study of NSOs’ anti-harassment policies after 1996, Peter Donnelly writes that most NSOs either did not have a policy at all or had policies that were ineffective and deficient in many aspects. Overall, he found, most NSOs “fall[] far short” of the government-mandated requirements.³¹ In Forsyth and Simard, the plaintiffs plead that Alpine Canada discouraged them from grieving or reporting to the police, used their career advancement as leverage to silence them, lacked reporting and investigation policy and procedure for sexual misconduct, and failed to investigate Charest’s misconduct or report him to the police.³²

Tort-Based Action

Tort-based action is currently athletes’ only avenue of legal redress in sport-related sexual abuse, yet it is insufficient and ineffective in addressing the unique needs of athletes. In the three lawsuits, the plaintiffs have pleaded the breach of fiduciary duty,³³ systemic negligence,³⁴ and breach of contract.³⁵ Tort-based litigation, if it succeeds or settles, has the unparalleled benefit of potentially providing claimants with very high damages. The Simard settlement is confidential, but each of the three plaintiffs had sought $450,000 in the statement of claim.³⁶ Litigation can also incentivize systemic change: in response to Carcillo, CHL has convened an independent review panel to evaluate its policies.³⁷

However, the disadvantages of court-based action outweigh its potentials. First and foremost, tort-based litigation is very lengthy and cannot address sexual abuse on a proactive and ongoing basis. However, for many athletes, a speedy process is of utmost importance, as they may miss eligibility periods and important competitions, or age out of a sport. Secondly, suffering a tortious conduct is a pre-requisite to commencing tort-based litigation. A robust approach to protecting athletes from sexual abuse requires addressing all abusive conduct, not only those egregious enough to satisfy the requirements of the torts noted above. Thirdly, as the suits against Alpine Canada demonstrate, tort-based litigation is individualized and adjudicated on case-by-case basis, even requiring athletes suffering the same abuse by the same person to bring different lawsuits. Simard was settled out of court, leaving no precedent, no damages to other athletes, and no requirement on Alpine Canada, let alone other NSOs or the Canadian government, to revamp their approach to sexual abuse.

Fourth, litigation outcomes can “vary greatly from case to case, even though the factual basis of cases might be quite similar.”³⁸ The quality of legal representation can also vary: the pleadings in Carcillo are more comprehensive than those in Forsyth, which are then more comprehensive than those in Simard. Lastly, litigation is very costly for athletes and NSOs. Lump sum damages could even bankrupt NSOs, leaving current athletes with less resources to train and compete and leaving litigant athletes with delayed, lowered, or no compensation.³⁹ Litigation expenses could instead be spent on resourcing policy creation and enforcement to prevent abuse in the first place.⁴⁰ Litigation is also emotionally costly: tort litigation requires athletes to testify about traumatic experiences and constantly hear about and revisit them for a long period of time.

B. Athletes and the Employment Relationship

Elite athletes meet the common law definition of employee. Even though this paper concerns statutory law, the common law test of employment and the importance the common law attaches to work are the starting points to understand the employment relationship under statute. In as early as 1988, Robert Beamish and Janet Borrowy argued that elite Canadian athletes, even those receiving limited renumeration, fulfil the requirements of every legal test of employment.⁴¹ Under the leading Supreme Court of Canada (SCC) case of “671122 Ontario Ltd v Sagaz Industries Canada Inc”, determining employment status requires asking whether a person’s work is an integral part of a business or whether they work for themselves – are they in a contract of service or contract for service?⁴² The Sagaz analysis is based on various factors, particularly the “level of control the employer has over the worker’s activities.”⁴³

Non-direct forms of compensation, such as those provided to athletes, should be considered compensation for the purpose of the Sagaz test. In Canada, elite athletes are compensated on a “carding” basis. An athlete’s experience and medal-earning potential determines their carding level, and each carding level corresponds to a certain level of funding. The bulk of athletes’ funding comes from Sport Canada, a branch of the Federal Department of Canadian Heritage. According to a study by Sport Canada, in 2018, federal funding for each carded athlete ranged from $8,496—the lowest carding level—to $20,798—the highest carding level.⁴⁴ Over three quarters of athletes, primarily women, reported being dependent on this funding.⁴⁵ Athletes also receive payments from the Canadian Olympic Committee and provincial governments, as well as through endorsements, sponsorships, appearance fees, prize money, and sports awards. All considered, carded athletes earned an average of $28,858 in 2018.⁴⁶ In applying the common law test of employment to a proposed bargaining unit of a Rugby Canada national team, the BC Labour Relations Board (BCLRB) found that compensation need not be in the form of direct payment or be limited to “a fixed wage, computed hourly, weekly, or monthly.”⁴⁷ Indeed, it is not the athletes’ fault that their payment is non-direct by design.

The athlete-NSO relationship, as sanctioned by their contract, vests NSOs with significant control over athletes – indeed, this amount of control arguably surpasses most employers’ control of their employees. Writing in the US context, Marc Edelman and Jennifer Pacella argue that USA Gymnastics is a monopoly for elite gymnastics. The implication is that compensation for one’s gymnastic skills and being under a contract to train and compete for USA Gymnastics, are “in essence, part and parcel to one another.”⁴⁸ In a similar vein, to play their sport, compete at a high level, and receive any compensation, Canadian athletes have to contract with NSOs, because there is nowhere else to go. Athletes’ compensation requires being under a contract to an NSO, adhering to that contract,⁴⁹ and being nominated by the NSO for carding.⁵⁰ Under the Model Athlete-NSO Agreement, published by Sport Canada, athletes are to demonstrate commitment to their training, monitoring, and competition plan.⁵¹ In practice, this commitment translates to an average of 34 hours per week in training, with one third of athletes training for longer durations. Under the Model Agreement, athletes effectively relinquish control over short and long-term training schedule and modality, competition selection and schedule, team selection, training location, uniform, equipment, medical treatment, and substance use. Some NSOs provide for very restrictive provisions: for example, athletes under contract to Rowing Canada are prohibited from participating in activities that are “not conducive to high performance training and competition, or which pose risks to the Athlete’s health or the Athlete’s ability to train or compete effectively.”⁵²

Due to the existence of compensation and control, elite athletes are in a contract of service, and are hence employees of NSOs. In Re Canadian Rugby, the BCLRB found that the athletes’ services furthered Rugby Canada’s organizational objectives “to administer, promote, encourage and extend” the sport throughout Canada.⁵³ Athletes’ compensation was tied to their labour in furthering these objectives.⁵⁴ The BCLRB concluded that the athletes “exchange their services for remuneration in service of Rugby Canada’s enterprise, and that they do so under the direction and control of Rugby Canada.”⁵⁵ As argued here, all athlete-NSO relationships function likewise.

II. HUMAN RIGHTS CODE

For elite athletes, the Code’s employment provisions can address the dignitary harm of sexual abuse. The Code is premised on the “recognition of the inherent dignity and the equal and inalienable rights of all [to] equal rights and opportunities without discrimination.”⁵⁶ Currently, athletes could fall under sections 1 and 7(3)(a) of the Code. However, more dimensions of the athlete-NSO relationship could be regulated under the employment provisions of the Code, sections 5(1) and 7(2).

A. Elite Athletes Under Non-Employment Provisions of the Code

Section 1 of the Code—guaranteeing “equal treatment with respect to services, goods and facilities, without discrimination because of […] sex […]” – encapsulates the relationship between elite athletes and NSOs. The Code does not define “service,” but the Human Rights Tribunal (HRTO) has asserted that a service should be broadly and purposively interpreted as “something of benefit.”⁵⁷ The HRTO has, for example, considered the following to be “service”: for a Provincial Sport Organization⁵⁸ to provide its internationally ranked athlete with race licenses,⁵⁹ for a university⁶⁰ and a local athletic club⁶¹ to create a team roster, and for a university to investigate and adjudicate a student’s complaint under student conduct policies.⁶² As highlighted in Part I, sport authorities often hold an athlete’s career advancement as leverage to keep them silent about sexual abuse. By analogy to the aforementioned HRTO cases, a coach’s refusal to select athletes for a team (or to provide them with other training resources) due to athletes’ rejection of sexual solicitation or athletes’ reporting of sexual abuse, or an NSO’s failure to investigate those reports, would breach section 1.

Yet, the protection offered by section 1 to elite athletes is still inadequate. Not all aspects of a service relationship come under the Code’s purview.⁶³ Most section 1 cases concern formal, institutionalized, and one-off incidents: an athlete is either issued a race license or not, their complaint of sexual abuse is either investigated or not. While discrimination should be prohibited in those contexts, the nature of sport-related sexual abuse, as identified in Part I, extends beyond a ‘typical’ section 1 violation. An athlete’s relationship with an NSO is comprised of many interactions, with many individuals in various capacities, every day, for years, even for over a decade. It could be conceived that the entire athlete-NSO relationship be seen as part of NSO’s ‘service.’ Yet, a drastic extension of section 1 could have unreasonable repercussions for other services: if section 1 makes an NSO liable for the conduct of a physiotherapist it recommends to an athlete, should a hairdresser be liable for the conduct of a physiotherapist they recommend to a client? Moreover, a drastic extension of section 1 to conceal the particularities of the employment relationship should be rejected as a matter of principle. As I noted in Part I and will further discuss in Part II(B), athletes are not ‘clients’ but are in fact the backbone of NSOs’ business model.

Similarly, section 7(3)(a) of the Code is unlikely to provide athletes with adequate protection against sexual abuse. Section 7(3)(a) proscribes “sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person […].” Despite no reference to an employment relationship in section 7(3)(a), the HRTO has only once used section 7(3)(a) in the employment context.⁶⁴ If the HRTO were to interpret section 7(3)(a) more broadly, the Code could capture the harm caused by certain perpetrators with power over athletes – such as coaches – in a variety of formal and informal settings. Still, it is less clear if, say, physiotherapists fit the description; others, such as teammates or athletes from other teams, likely do not. While advocating for a broader interpretation remains a possibility, as I will shortly discuss, section 7(3)(a) does not encapsulate the employment-like nature of the athlete-NSO relationship and adopting a halfway measure instead of a full recognition of the athlete-NSO relationship should be resisted.

B. Elite Athletes Under Employment Provisions of the Code

The Code could provide athletes with significant protections against sexual abuse under sections 7(2) and 5(1). Section 7(2)’s proscription of workplace sexual harassment applies to conduct by employer, agent of the employer, and employees. Due to its breadth, section 5(1) catches what section 7(2) cannot: it proscribes all sex discrimination “with respect to employment.” Sexual harassment – defined as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment ...” – constitutes sex discrimination.⁶⁵

The first advantage of sections 7(2) and 5(1) is that the important status the HRTO and common law grant to work corresponds to the importance of sport to athletes’ lives. According to the SCC, “Work is one of the most fundamental aspects in a person’s life [and is] an essential component of [their] sense of identity, self-worth and emotional well-being.”⁶⁶ It is a fundamental breach of the employment contract for an employer to treat employees without “civility, decency, respect and dignity…in all aspects of the labour process”⁶⁷ and to thus “make[] continued employment intolerable.”⁶⁸ Indeed, work is so important that even the manner of its termination has garnered special judicial scrutiny. According to the SCC, termination can have “far reaching repercussion,” cause “personal dislocation,”⁶⁹ and is “always a traumatic event,” with bad faith in termination being “especially devastating.”⁷⁰

Sport plays the same role in the lives of elite athletes that work plays in the lives of other employees. To attain their “card,” athletes train and compete from a very young age, pivoting their own and their family’s lives around their sport. They dedicate to sport the physical and emotional energy and time that they would have otherwise spent on education, social life, and non-sport career development – it becomes, in the words of the SCC, their “identity, self-worth and emotional well-being.” ⁷¹ Accessing a “service” does not implicate this level of commitment: at the end of the day, if you are denied entry to a bar for discriminatory reasons, you can always try the next bar down the block. The stakes for elite sport are even higher than those present in most employment – most employees can ultimately find another job, but an NSO is a monopoly, and an elite athlete has nowhere else to go.

Second, the HRTO’s broad interpretation of the employment provisions of the Code can bring a wide array of interactions in the athlete-NSO relationship under the Code. In BC Human Rights Tribunal v Schrenk, the SCC found that section 13(1)(b) of the BC Human Rights Code⁷² – equivalent to section 5(1) of the Code – “prohibits discriminatory conduct that targets employees so long as that conduct has a sufficient nexus to the employment context.”⁷³ The SCC found that interactions with colleagues and clients satisfy this nexus as it would be “unduly formalistic to assume that the only relationship that can impact our employment is that which we share with our employer”⁷⁴ For example, a bar patron can exercise economic power on a bartender by withholding tip or harassing her, and “in the context of their work, [employees] are a captive audience” to this behaviour.⁷⁵ Drawing on Schrenk, the HRTO held in Kuti v Bondfield Construction that discrimination from another employer’s employee in a shared workplace is discrimination “withrespect to employment” under the Code.⁷⁶

Thirdly, the Ontario Human Rights Commission provides employers with extensive guidelines for developing anti-harassment policies⁷⁷ that, while non-binding, “set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code.”⁷⁸ Commission guidelines for non-employment provisions of the Code are not as extensive, and Sport Canada does not provide any such guidance to begin with. Related to the second advantage discussed in the last paragraph, the Commission’s guidelines extend the definition of “workplace” under section 7(2) to interactions after work hours or outside the formal workplace, for example during a union meeting.⁷⁹ Given this low threshold, an athlete’s interactions with any individual in any space with a “sufficient nexus” to the athlete-NSO relationship could attract Code scrutiny. The Commission’s interpretation can capture not just the behaviour by those directly employed by NSOs but also, say, behaviour by physiotherapists and other athletes. While physiotherapists may not have the power to withhold funding from athletes, they can, in the SCC’s words, “exploit[…] identity hierarchies to perpetrate discrimination” on the basis of sex and age.⁸⁰

Lastly, a toxic environment resulting from sexual abuse can violate section 5(1). A toxic environment is created when one “particularly egregious stand-alone incident or comment” or a repeated pattern of behaviour “become a condition” of employment, such that working and being discriminated become part and parcel to each other.⁸¹ As noted in Part I, athletes in Forsyth and Carcilllo plead that a toxic environment existed in their organization; their participation and advancement in sport necessarily entailed their subjugation to sexual abuse.⁸² Similar protection does not exist under sections 1 or 7(3)(a).

C. Limitations

My argument for applying sections 5(1) and 7(2) to elite athletes instead of sections 1 and 7(3)(a) is partially based on interpretation: the formerare advantageous because they have been used more frequently and interpreted more broadly – but that means that the non-employment provisions could be similarly interpreted. However, my point is that the Code’s employment provisions already provide an appropriate framework for addressing sexual abuse in sport – if athletes are employees anyway, then why reinvent the wheel? Even if the employment provisions are not adopted, the common law and HRTO jurisprudence on work should inform how the athlete-NSO relationship is viewed, even if this relationship is regulated through other provisions of the Code or another legal means altogether. Moreover, the Code’s protections area floor and not a ceiling, and it may be preferable to improve athletes’ protection through collective agreements under the LRA instead of advancing demands through litigation at the HRTO. Indeed, the advantage of HRTO as a forum is unfortunately volatile: the Ontario government under Doug Ford has drastically cut the HRTO’s funding and instated adjudicators that some commentators consider incompetent.⁸³

As with the common law of employment, the Code provides for a complaint-based scheme after a right is already breached, making evident the need for concurrent OHSA and WSIA protection. Unlike OHSA (and despite the Ontario Human Rights Commission’s guidelines), the Code does not require employers to develop anti-harassment policies; in fact, under the Code, prevention efforts are valued in so far as they reduce the employer’s damages.⁸⁴ Moreover, the Code’s compensatory scheme is often a lump sum aimed at restoring one’s dignity, as opposed to creating a long-term plan for recovery and retorn to work as under the WSIA.

III. OCCUPATIONAL HEALTH AND SAFETY ACT

If applied to the elite athlete context, OHSA would operate on the premise that NSOs are legally responsible to protect athletes from sexual abuse (in Forsyth, the existence of this obligation is the very subject of litigation) regardless of the wishes of leagues, athlete unions, and team owners,⁸⁵ as well as NSOs and Sport Canada. The purpose of OHSA is to “protect workers from health and safety hazards on the job,”⁸⁶ and, indeed, many scholars have called for occupational health and safety regulation of athletics to provide for “accountability or enforcement of strong safety rules and protocols.”⁸⁷ OHSA would, firstly, provide a non-negotiable and comprehensive policy framework to prevent sexual abuse in sport and, secondly, enforce that framework through an independent body.

A. OHSA’s Policy Framework

The 2015 amendments to Part III.01 of OHSA,supplemented by extensive guidelines issued by the Ministry of Labour (MoL), have instituted rigid and substantial standards on workplaces to address sexual harassment and sexual violence.⁸⁸ Underthese new regulations, NSOs would be obligated to adopt harassment and violence policies tailored to their specific context. OHSA requires employers to have a policy on workplace violence (including sexual violence) and another policy on harassment (including sexual harassment),⁸⁹ accompanied by implementation plans. As a prerequisite to creating a workplace violence policy, employers have to conduct a risk assessment. In recognition that risks in some sectors or unique or heightened, this assessment would not only account for risks at one’s own workplace but account for risks occurring across the sector.⁹⁰ Hence, even if an NSO has not dealt with sexual abuse internally, it is still required to proactively address sexual abuse given the occurrence of sexual abuse in other NSOs.

The risk assessment has to account for the nature of the workplace (physical aspects such as layout, design, geographic location), type of work (activities performed or individuals encountered as result of those activities) and condition of work (such as hours of work). Under OHSA, a “workplace” is already defined broadly as “any land, premises, location or thing at, upon, in or near which a worker works,”⁹¹ including a building, vehicle, or road.⁹² The Ontario Labour Relations Board (OLRB) has found that OHSA envisions “a multiplicity of workplaces associated with any given enterprise; the location of workplaces may change; indeed, the workplace itself may be mobile.”⁹³ This definition, as well as the guidelines on risk assessment, seem to encapsulate the various locations and jurisdictions in which athletes train and compete. Under the risks caused by the “type” and “condition” of work, NSO policies would have to identify and account for potential risks in activities and interactions athlete engage in, such as trips or individual coaching sessions. Lastly, to remedy any unclarity and fill any gaps (for example about whether “workplace” applies to more private settings), the MoL can institute sport-specific regulations.⁹⁴

Moreover, under OHSA, NSOs would also be required to inform athletes to the extent “reasonably necessary” about the risk of violence from a person with a history of violence.⁹⁵ In Re Erie St Clair Community Care Access Centre and ONA (KE),the Board of Arbitration found that determining reasonable necessity requires considering “the nature of the dangers present in the workplace and the safety measures that can be put in place to effectively remove or reduce the risk of those dangers.”⁹⁶ The Board further found that an employer violates OHSA when it is presented with “objective evidence of a possible threat” and fails to “take sufficient steps to protect [employees] from that threat.”⁹⁷ Arguably, given the nature of sexual abuse in sport, it was reasonably necessary for Alpine Canada to ensure its athletes were not coached by an individual with a known history of sexual misconduct in the skiing community. Even after Alpine Canada was made aware of Charest’s behaviour, it did not revoke Charest’s coaching privileges or report him to the police, and Charest continued coaching young athletes for over a decade.⁹⁸ As the Board of Arbitration found in Kingston v CUPE, Local 109, such omissions are precisely what Part III.01 of OHSA prohibits: “[a]n employer may not hide its head in the sand, or take a passive stand, hoping that things will sort themselves out. It must not trivialize the allegation […] that option no longer exists in Ontario.”⁹⁹

B. Enforcement under OHSA

The MoL is tasked with enforcing OHSA through inspection and prosecution. MoL inspectors, with expertise in the sectors they are assigned to, inspect workplaces either proactively in a “blitz” (without needing to obtain a warrant or provide notice) or retroactively after a complaint or injury.¹⁰⁰ If an inspector detects OHSA breaches, they can issue a compliance order or issue a “stop work” order until worker safety is no longer in jeopardy. Inspectors can also require employers to post these orders for all workers to see. At an NSO, inspectors could ensure relevant policies (for example about coach-athlete relationships or travel guidelines) are in place, review documentation of complaints, or privately interview athletes about their safety or knowledge of sexual abuse incidents. Inspectors could also ensure employers follow the law in investigating a complaint.¹⁰¹ One can imagine that the sexual abuse at Alpine Canada would have ended sooner had athletes and their parents been made aware of Charest’s rampant abuse through a publicized compliance order. Moreover, the MoL could hold noncompliant NSOs accountable through fines and prosecution, further incentivizing NSOs to address sexual abuse appropriately. The MoL has the jurisdiction to issue a maximum fine of $500,000 to offending employers or prosecute them under the Provincial Offences Act.¹⁰² Currently, even if Sport Canada wanted to better enforce its anti-harassment requirements, it lacks a statutory power of enforcement similar to the MoL’s.

C. Limitations

Sexual abuse is unlike faulty machinery; you cannot detect it through a blitz. The MoL also specifically notes that inspectors do not themselves investigate a workplace harassment or violence claim (they only ensure employers follow the law in their investigation). Admittedly, the traditional approach to inspection can ensure athletes’ protection against sexual abuse to some extent by, for example, reviewing policies or complaint records – but more needs to be done. The regulation of work should correspond to and evolve with the nature of work. If elite sport is work and sexual abuse is one of its risks, then the MoL should adopt new methods to address that risk, including through active investigations of sexual abuse. In fact, investigation would only require the same evidence production powers (such as interviews or document review) that inspectors already have.

Similar to the Code, OHSA is only effective in so far as it is applied, and applied robustly. In 2019, The Globe and Mail reported that none of the 3,500 companies found in violation of OHSA’s anti-harassment provisions that year had been prosecuted.¹⁰³ As the COVID-19 pandemic demonstrated, workers’ safety can take a backseat to business interests¹⁰⁴ – but that is a political choice that should be fought, not accepted. Relatedly, an important challenging in bringing OHSA to sport is political pushback. While the OHSA is silent on athletes’ inclusion, many jurisdictions in the US actively exclude athletes from similar regulation based on arguments about the athletes’ voluntary assumption of risk, the unclarity of science of concussions, and the contribution of athletes’ pre-existing injuries to the concussion.¹⁰⁵ On the one hand, these factors are inapplicable to the sexual abuse context as sexual abuse is not an inherent risk of sport, it is unequivocally harmful, and it cannot be viewed as a “think skull.”¹⁰⁶ Yet, it is imperative to advocate for a regime of labour and employment that reflects the conditions of work – if work has the risk of injury, physical or psychological, then workers should receive protection from those injuries. The law of work should reflect the conditions of work, not the other way around. Lastly, as with the Code, OHSA is a floor and not a ceiling, and further regulations – such as a broad definition of “workplace” or independent investigation of sexual abuse complaints – can be negotiated in a collective agreement. Even if athletes are not regulated under OHSA, thinking about sexual abuse in sport through OHSA can aid in developing an alternative prevention and enforcement regime.

IV. WORKERS SAFETY AND INSURANCE ACT, 1997

In fulfilment of its statutory purposes of aiding workers with “recovery[y]” and “return to work,”¹⁰⁷ the WSIA can provide athletes with the monetary resources needed to recover from the harm of sexual abuse and provide them with a return-to-work (RTW) plan.

A. Compensation

Generally, the WSIA provides workers with recovery-focused compensation (such as psychological assessment, treatment, and prescription medications)¹⁰⁸ as well as current and future loss of earning.¹⁰⁹ By contrast, the Canadian Athlete Insurance Program, covering all carded athletes in Canada, only compensates for “a sport related injury” caused by a “sudden and unexpected incident” in the course of practice, competition, or travel from practice and competition, which excludes sexual abuse.¹¹⁰ Unlike athletes’ existing insurance scheme, WSIA covers mental stress. Traumatic Mental Stress (TMS) results from “an appropriately diagnosed mental stress injury,” which can result from “being the object of physical violence,” presumably including sexual violence.¹¹¹ TMS is also recoverable cumulatively: the last incident in a series of traumatic events can qualify as TMS even if the worker was able to tolerate earlier incidents. Allowing cumulative recovery in the sexual abuse context is crucial since, as noted in Part I, sexual abuse in sport is often continuous and protracted over time. Chronic Mental Stress (CMS) refers to a series (or the cumulative effects of a series) of “substantial” work-related stressors, including workplace harassment.¹¹² CMS is available to witnesses of an incident and to those who heard about the incident from the victim, potentially encapsulating the toxic environment pleaded in Forsyth and Carcillo.

Both TMS and CMS are recoverable for injuries “arising in and out of the course of employment,” which the Workplace Safety and Insurance Board (WSIB) guidelines interpret broadly and contextually using three factors:¹¹³

1. Place: as noted earlier, sexual abuse in sport occurs in a variety of locations. The WSIA would readily apply to athletes’ “fixed” places of employment, such as training halls. To determine whether the WSIA applies to places of employment that are not as “fixed,” the WSIA would assess whether the location is where the athlete “reasonably have been expected to be while engaged in work-related activities.”
2. Activities: in determining a work-related activity, the WSIB considers whether the worker was engaged in an activity “reasonably incidental” to the employment or instead one focused on “satisfy[ing] a personal need” (though “a brief interlude of personal activity” does not necessarily disqualify a claim). This determination is guided by the nature and customs associated with the work and workplace as well as the duration and nature of the “personal activity” and the extent to which it deviated from regular workplace practices. This contextual analysis can account for the variety of settings and interactions athletes are placed in by virtue of their participation in sport.
3. Time: as with the “place” factor, if an injury occurs outside of “fixed” working hours, contextual factors will be taken into account to determine work-relatedness.

A significant advantage of the workers’ compensation regime over tort litigation is that compensation is allocated on a no-fault basis. Moreover, WSIB proceedings generally faster than court proceedings. Quick compensation to ensure a speedy recovery and return to sport is particularly important for athletes due to the time-sensitive nature of eligibility periods, peaking age, and rigid competitive schedules. Moreover, courts lack the resources and expertise for “claim processing, payment, continuous follow-up, statistical compilation,”¹¹⁴which a worker’s compensation agency such as the WSIB provides.

B. Return to Work

The WSIB’s role in creating a RTW plan further distinguishes it from the Code’s compensatory regime or other insurance regimes: the WSIA would not only ensure athletes recover but that they also return to sport. Generally, the WSIB designates RTW assessors to determine the worker’s medical fitness to either return to their pre-injury job (with or without accommodations) or to a new job altogether.¹¹⁵ Admittedly, the current WSIB regime is centred on physical injury: while a worker can return to work after recovering from a physical injury, an athlete cannot return to a team coached by the same person that abused them or simply switch sports. As with OHSA, that sport is different than traditional blue-collar work is no reason to dispense with the WSIA but to ensure itreflects the current conditions of all work.

Because the risk of sexual abuse is not inherent to sport, an RTW plan in sport would necessarily require identifying and removing “hazards” at the source. Similar to the MoL, the WSIB could provide sport-specific guidelines. In fact, the WSIB already provides employers with “Hazard Management Tools” to identify and control workplace hazards,¹¹⁶ and publishes guidelines to assist employers with sector-specific compliance. For example, in a factsheet on preventing dermatitis at the workplace, the WSIB informs that, “[a]s with all hazardous conditions in the workplace, the best control is at the source of the problem,” and makes various recommendations, such as “chang[ing] the work process to remove the cause.”¹¹⁷

C. Limitations

Unfortunately, while the WSIA holds great potentials for athletes, WSIB adjudicators interpret requirements such as degree of causation, intent, or corroboration very narrowly. A CanLii review demonstrates that WSIB has consistently interpreted what is “objectively traumatic” ¹¹⁸ under TMS so narrowly that not a single TMS claim has succeeded.¹¹⁹ Similarly, an internal quarterly audit in 2018 found that the WSIB had denied 90 per cent of all CMS claims, primarily for lack of causation.¹²⁰ In penning a letter to the Ontario government,¹²¹ a coalition of workers’ rights group warned that the WSIB’s approach to mental injuries is unconstitutional: under WSIB guidelines, stressors need to be the “predominant” cause of CMS, while the standard of causation is much lower for physical injuries (“significant factor”).¹²² In assessing CMS claims, the WSIB also very narrowly interprets what is “substantial” and “normal” in a workplace so as to deny most claims.¹²³ Lastly, both CMS and TMS incidents would need to be corroborated.¹²⁴ Since most sexual abuse occurs in private, this requirement effectively means that abuse needs to escalate to such a severe level that is known in the community to be compensable.

As with my overview of the Code and OHSA, my discussion of the WSIA is, on one level, aspirational: using the WSIA to think through what athletes need to recover and return to work can aid, not just in revamping the current workers’ compensation scheme, but also in devising other alternatives. But we should not dispose with the potentials of the WSIA so easily; instead, we should support workers’ rights groups who continue to politically tackle the failures in WSIA’s interpretation, adjudication and application and push for a WSIB that is adequately funded and staffed.¹²⁵ Moreover, in the specific context of sport, advocates should resist leagues and teams’ political pressures to keep athletes’ excluded from workers’ compensation regimes in Ontario and other provinces.¹²⁶ In a 2019 letter to WorkSafeBC (BC’s workers’ compensation board), counsel for the Canadian Football League cited the following reasons to justify players’ continuous statutory exclusion: the inherently risky nature of sport, voluntary assumption of risk, and the contributions of pre-existing injuries to ‘workplace’ injuries.¹²⁷ As I noted regarding OHSA, these arguments are inapplicable to the sexual abuse context, but we should not stop there. We should continue to advocate for a labour and employment regime that corresponds to the conditions of work: a worker at risk of injury, be it psychological or physical, with or without pre-existing injuries, should be entitled to recovery from the injury.

V. LABOUR RELATIONS ACT, 1995

Unionization offers elite athletes what it offers all workers: reducing power differentials and creating a collective voice to bargain and advocate for better work conditions. In the US, the revelations of sexual abuse at USA Gymnastics and the US Olympic Committee’s complicity in its coverup have renewed the momentum for unionization among Olympic athletes.¹²⁸ According to Edelman and Pacella, absent a union of elite gymnasts in the US, “even a single conflict” between athletes and USA Gymnastics can derail athletes’ career.¹²⁹ In calling for the unionization of CHL athletes, Simon Black writes that, despite the substantial power imbalance between the CHL and its athletes, no independent mechanism exists to ensure athletes are fairly treated. This imbalance is exacerbated because, similar to many elite athletes, CHL athletes are young and lack experience in the workforce let alone knowledge of trade unions.¹³⁰

The formal LRA structure promises athlete a collective agreement. The Code, OHSA, and WSIA are a floor from which a collective agreement can build more specific provisions relevant to sexual abuse.¹³¹ An athlete-NSO collective agreement could contain measures such as strong whistleblower and antiretaliation protections, protections for underage athletes, travel guidelines as well as a policy on athlete-coach relations outside of formal training and competition. This collective agreement could also include monetary compensation for athletes suffering mental stress as result of sexual abuse. Moreover, a union would represent athletes in enforcing their rights under statutes or the collective agreement, both through internal grievance procedures and at arbitration. For athletes, a union’s support to ensure fair resolution and settlement is crucial as athletes are young, unaware of their rights, and fear retaliation.

Unions can also engage in mobilization and direct action to demand better conditions for athletes. They can demand that the Ontario government address the limitations I identified in the Code, OHSA, and WSIA; advance athletes’ interests to NSOs, Sport Canada, and the Canadian Olympic Committee; and educate athletes about their rights in sport. Moreover, unions also provide significant infrastructure for athletes themselves to engage in political advocacy. For example, in 2018, the NFL banned athletes from protesting anti-Black police violence by kneeling while the national anthem plays at the beginning of a game. The National Football League Players’ Association grieved this ban, and the ban is now indefinitely suspended. ¹³² Unions can also support athletes’ advocacy extra-legally: in August 2020, many American athletes went on ‘wildcat’ strikes to protest anti-Black police violence. Despite the ‘illegality’ of the strikes, unions provided participant athletes with financial and political support for their activism.¹³³ An athlete-NSO union could provide similar support to athletes wishing to protest NSO’s and Sport Canada’s inaction on addressing sexual abuse in sport.

Throughout this paper, I have noted that the Code, OHSA, and the WSIA can be applied to elite athletes or be used as models for creating an alternative framework of addressing sexual abuse in sport; in the collective organizing context, that alternative already exists: AthletesCan, an association of Canadian elite athletes, fulfills an important advocacy role through “informing, educating, and advocating for an athlete-centered sport system.”¹³⁴ Recently, AthletesCan published a report calling for increased democratization and athlete inclusion in sport governance.¹³⁵ To ensure athletes’ rights are respected, the Canadian government should continue funding AthletesCan and the labour movement should support the organization.

VI. CONCLUSION

In this paper, I have argued that, if included under Ontario’s labour and employment regime, elite Canadian athletes can receive significant protections against sexual abuse in sport. Each of the statutes discussed in this paper fulfills a specific function – dignitary harm, prevention, enforcement, recovery, and advocacy – to create a strong response to sexual abuse. Throughout my analysis, I have flagged various limitations with these statutes, such as non-purposive interpretation, incompetent adjudication, year-long delays, poor enforcement, or underfunding of tribunals. However, these legislations are not the only conceivable means of achieving these goals. Even if not considered employees and workers for the purpose of these statutes, elite athletes have a near-employee status, and these statutes provide a clear framework to devise of other guidelines and bodies for addressing sexual abuse in sport.

Yet, these limitations are no reason to dispense with labour and employment law but an indication that workers cannot rely on the good will of governments to protect them. All legislation can be interpreted, amended or applied to achieve a specific purpose – that purpose can either advance the interests of economic and political elites or those of workers. In the modern labour force, athletes, well as many other workers, do not have fixed hours or location of work and are subject to various forms of risk. Ontario’s labour and employment law regime should correspond to the conditions of work and reflect the interests of all workers, and that is only possible through political mobilizing and agitation.

Endnotes